Friday, 14 June 2013

A litany of errors that must not be repeated

This week we've seen a story that is both heart-rending and deeply worrying. It also casts a spotlight on the litigation landscape, post-Jackson and in the difficult new world of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO).

Maria De Jesus, a mother of three from Dagenham, was heavily pregnant when she developed pains in her stomach. She was admitted to Queen's Hospital, Romford last October, where she was treated by two trainee surgeons. Instead of removing her appendix, the surgeons took out one of Mrs de Jesus's ovaries.

A litany of errors

Mrs de Jesus was discharged eight days after the operation, but returned to hospital a week later with severe stomach pains. By this time it appears that she had developed severe sepsis as a result of appendicitis. Tragically, it was too late to save her. When doctors finally removed her appendix Mrs de Jesus died in theatre from multiple organ failure, despite the fact that 100ml of septic fluid was drained from her abdomen.

Cases like this are appalling. Three children have lost their mother; Maria's husband, Adelino de Jesus, is devastated. But to add insult to injury, it took a year and a half for a letter of apology to be sent by the chief executive of the Barking, Havering and Redbridge Hospital Trust, Averil Dongworth. On behalf of the Trust, she admitted liability and apologised to the family.

Mr de Jesus is understandably angry at what he describes as "a litany of errors". As he told The Evening Standard: "This is neglect, this is an unlawful killing. If my wife had been given treatment by fully qualified staff and people were informed of the mistake earlier she could still be alive." Moreover, he's livid at the length of time it took for an apology to be made - and the way in which it was conveyed. "Why has it taken so long? It is one-and-a-half years since she died. The letter is in Portuguese, our native tongue, but my sons speak perfect English - why can't they give me a letter in English as well? I am revolted by everything. It sickens me."

Mr de Jesus has every reason to be angry. He plans to sue the Trust, and it is entirely right and proper that he should be able to do so. The General Medical Council is meantime investigating eight medical staff in connection with the death of Mrs de Jesus.

Clinical negligence

With better standards of care and supervision, Mrs de Jesus would still be alive. The case against the Trust could not be clearer - and it has, of course, admitted liability - but often clinical negligence cases are not so clear cut. As Deborah Evans, the chief executive of the Association of Personal Injury Lawyers (APIL), says in PI Brief Update: "the success rate [in clinical negligence cases] is lower simply because the prospects of success are difficult to determine at the start of a case".

As Deborah goes on to explain, in the LASPO environment this creates a complex risk assessment exercise for lawyers - one which amounts to "a survival tool". Because a clinical negligence case is difficult to predict, with issues of causation often problematic, deciding to take it on may be a commercial gamble for law firms, because of LASPO changes such as the 25% cap on success fees. In other words, it may not economically viable to represent what Deborah describes accurately as "real people with real injuries that no lawyer wants to turn away".

Post-Jackson and thanks to LASPO, then, people who have suffered  serious malpractice at a hospital or those who have contracted an industrial disease at work may not find it easy to bring claims for negligence. Do we really regard this as access to justice?

I wish Mr de Jesus well in his efforts to obtain deserved redress from the Barking, Havering and Redbridge Hospital Trust. I also hope that the Trust and other hospitals learn from this tragic case - and, in time, that we find a way of ensuring that victims of clinical negligence are not left without any means of securing justice.